Can there be any issue that police seeking to obtain information from and about an individual is a “search”?

The Supreme Court of Canada decision in R. v. Le [2019] S.C.J. No. 34 is being lauded as a victory for civil rights and the restraint of police powers regarding informal questioning of civilians, but for reasons I will discuss at the end of this post, it doesn’t appear to be the victory it’s being made out to be.  Or, if so, not for the reasons perceived.

As background, one evening at approximately 10:40 p.m. in May, three police officers noticed four Black men and one Asian man in the backyard of a townhouse at a Toronto housing co-operative. The police were looking for a third party who was wanted by the police for some violent crimes and who, they were told, frequented the area and may have been hanging out in this area of the townhouse complex.  The young men appeared to be doing nothing wrong. They were just talking. The backyard was small and was enclosed by a waist-high fence. Without a warrant, or consent, or any warning to the young men, two officers entered the backyard and immediately questioned the young men about “what was going on, who they were, and whether any of them lived there”. They also required the young men to produce documentary proof of their identities. Meanwhile, the third officer patrolled the perimeter of the property, stepped over the fence and yelled at one young man to keep his hands where the officer could see them. Another officer issued the same command. The officer questioning the male, Tom Le, demanded that he produce identification. Mr. Le responded that he did not have any with him. The officer then asked him what was in the satchel he was carrying. At that point, Mr. Le fled, was pursued and arrested, and found to be in possession of a firearm, drugs, and cash. He was charged with 10 offences, which consisted of seven weapons offences, two drug offences in relation to the 13 grams of crack cocaine, and one charge for possession of crime proceeds.

The trial focused primarily on the police entering the backyard and making inquiries, and the detention of the accused and subsequent search. The trial judge found that the officers attended at the backyard for valid and proper investigative purposes. They were lawfully entitled, pursuant to the implied licence doctrine, to enter this backyard through an open gateway in order to speak to any potential occupier of the townhouse. They were never asked to leave. When Le tried to conceal his bag, the police had reasonable grounds to believe that he was armed and dangerous. Le was effectively detained when he was asked about the contents of the bag. The trial judge found that this detention was not arbitrary because the police had reasonable grounds to believe that he was armed and as such, he was not subjected to any unreasonable search or seizure.

Le appealed to the Court of Appeal for Ontario. Writing for the majority, Doherty J.A. dismissed the appeal and held that the trial judge did not commit any errors in the ss. 9 and 24(2) Charter analyses.

The SCC took a different approach. Some believe that the case was clearly focused on police verbal interaction with civilians, “questioning”, but the case was decided contextually as a s. 9 ‘detention’ case, with only s. 8’s territorial privacy aspect receiving a passing mention in the SCC’s 3:2 decision. The highest court found that the police entered the property as trespassers and that the trial judge and the majority of the Court of Appeal for Ontario erred by concluding that the detention crystallized only when Le was asked what was in his satchel. Rather, the SCC found that he was detained when the police entered the backyard and made contact. Because no statutory or common law power authorized his detention at that point, it constituted an arbitrary detention. No statute authorized these police officers to detain anyone in the backyard. Similarly, the common law power to detain for investigative purposes could not be invoked. Le’s detention was arbitrary because, at the time of detention (when the police entered the backyard), the police had no reasonable suspicion of recent or ongoing criminal activity. Since the detention in this case was not authorized by law, the SCC felt there was no need to analyze whether that law was arbitrary or whether the detention was carried out in a reasonable manner. The court did, however, find that this was serious police misconduct. The court ruled that there simply were no grounds, let alone reasonable grounds, to suspect any criminal wrongdoing was committed or being committed by the young men in the backyard. The discovery of the evidence was only possible because of the serious s. 9 breach in this case. The convictions were set aside and acquittals entered.

Now, why do I say that this case doesn’t appear to be a major victory for civil rights? Well, the SCC could have examined this case in a different light, but it chose not to. Police questioning of citizens to elicit information, explanations and intentions was not considered at all in the context of s. 8’s informational privacy protection. Alan D. Gold and Michael Lacy posit that Le demonstrates problems that are arising because Courts are not dealing with the constitutionality of police questioning directly by recognizing that informational questioning is a search under s.8 of the Charter to which the usual s. 8 standards and principles are applicable. Instead, the constitutionality of police questioning is being evaluated by means of the surrogate issue of “detention”, a far from simple concept that leads to honestly held reasonable opinions that are diametrically opposed and dramatically expressed, such as the majority and minority opinions in Le.

They also suggest that Le highlights the Charter issues engaged by police interacting with and addressing a civilian. A police officer’s speech to a civilian can fall in one or more categories, according to the pair. It can be a command to “not move”, “halt”, “put hands up”, “keep hands where they can be seen”, amongst other possibilities. It can be a social conversation, such as asking for the nearest Tim Horton’s. Most importantly, the officer can be asking for information for an investigative purpose such as requesting a name, address, “what’s in the bag?”, “what are you doing here?” and similar inquiries. They believe that a police officer asking for self-identification or its equivalent physical counterpart of document production, asking for explanations regarding presence and future intentions, however politely is certainly ‘not leaving the civilian alone’ and certainly transgressing the normative social understanding of most persons that they would rather not be asked such questions by a police officer.

The Supreme Court of Canada has previously recognized police questioning can constitute a search and seizure for the purpose of s. 8 of the Charter (R. v. Mellenthin [1992] 3 S.C.R 615, [1992] SCJ No 100). Other courts have found that answers to police questions may or may not give rise to a s. 8 claim (R. v. Harris, 87 O.R. 3d 214). In addition, in R. v. Grant, [2009] 2 SCR 353, 2009 SCC 32, the Supreme Court of Canada had the opportunity to consider whether an interaction between the police and a citizen which included questioning could amount to a search and seizure, but ultimately did not do so. Fast forward to the Le decision, where the opportunity again presented itself for such an examination and recognition of informational privacy issues, and again the opportunity was missed.  Hopefully as officers we will see some clear guidance in this area in a future case…

Leave a comment

Filed under Arbitrary Arrest or Detention

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s